Samaroo v. Bank of New York Mellon, ARB No. 2021-0021, ALJ No. 2019-SOX-00010 (ARB Apr. 12, 2021) (per curiam) (Order Dismissing Complaint)

The ARB dismissed the SOX complaint because Complainant filed a notice of the filing of an original action with the United States District Court for the Eastern District of New York.

Barton v. IFPTE Local 4, Portsmouth Naval Shipyard, ARB No. 2021-0025, ALJ No. 2020-SOC-00002 (ARB Apr. 8, 2021) (per curiam) 
(Decision and Order Approving Settlement and Dismissing Complaint with Prejudice)

The ARB adopted the ALJ's Recommended Decision and Order approving the parties' settlement agreement.

Thibeaux v. Edward Jones Investments, ARB No. 2021-0008, ALJ No. 2017-SOX-00056 (ARB Apr. 6, 2021) (per curiam) (Decision and Order)

TIMELINESS OF SOX COMPLAINT; TELEPHONE CALL TO OSHA 800 NUMBER WITHIN 180 DAYS OF COMPLAINANT’S LEARNING THAT HE WOULD NOT BE CONSIDERED FOR RE-EMPLOYMENT, IN WHICH COMPLAINANT NEITHER IDENTIFIED HIMSELF NOR RESPONDENT, WAS NOT SUFFICIENT TO ESTABLISH FILING OF A TIMELY ORAL COMPLAINT

TIMELINESS OF SOX COMPLAINT; “EXACT-CLAIM-IN-WRONG-FORUM” GROUND FOR EQUITABLE TOLLING NOT WARRANTED WHERE COMPLAINANT CONTACTED FINRA ONLY AFTER FIRST CALLING OSHA AND BEING TOLD THAT HE HAD ALREADY MISSED THE DEADLINE FOR FILING HIS SOX COMPLAINT 

In Thibeaux v. Edward Jones Investments, ARB No. 2021-0008, ALJ No. 2017-SOX-00056 (ARB Apr. 6, 2021) (per curiam), the ARB adopted the ALJ’s Decision and Order in which the ALJ concluded that Complainant had not filed his SOX complaint within the required 180 days of any alleged adverse action, and that no grounds for equitable tolling existed.  The remainder of this casenote is derived from the ALJ’s decision.  Thibeaux v. Edward Jones Investments, 2017-SOX-00056 (ALJ May 8, 2020).

Complainant alleged that he resigned from employment with Respondent but had applied for a different position 8 or 9 months later.  He filed multiple whistleblower complaints after Respondent informed him that other candidates were a better match for the job and that it would be unable to give him further consideration for the job.

The ALJ determined when ruling on Respondent’s motion to dismiss, that rejection of Complainant’s application for re-employment by Respondent was neither equivocal nor indefinite, and thus the deadline for filing began on that date.  The ALJ also determined that equitable tolling did not apply based on Complainant’s filing of a FINRA complaint because the bill of particulars specifically disavowed that retaliation was included in that complaint.  The ALJ, however, presided over an evidentiary hearing on whether the facts as alleged by Complainant supported a finding that the complaint was filed within 180 days of the rejection of the application for re-employment.  Complainant argued (1) that he made an oral complaint to OSHA by telephone within the 180 day period, and (2) that his filings with FINRA and the SEC tolled the filing period.

There was an absence of documentary evidence from OSHA on whether Complainant made the telephone contact, but the ALJ credited Complainant’s testimony that he did make such a call to the OSHA toll-free 1-800 number.  However, Complainant’s own testimony and the circumstantial evidence of record indicated that Complainant neither identified himself nor Respondent.  The ALJ found that this was not sufficient to establish the filing of an oral complaint within the limitations period.

As to the tolling argument, the ALJ noted that he had already found that Complainant’s bill of particulars specifically excluded retaliation as a basis for the FINRA complaint.  The ALJ determined that the bill of particulars did not even mention an SEC complaint.  The ALJ, however, found that Respondent would not be prejudiced by litigating the merits of Complainant’s tolling arguments.  The ALJ concluded that the evidence fell far short of establishing that Complainant mistakenly filed the precise statutory claim in the wrong forum.  Rather, Complainant first called OSHA, was told that the time limit for filing a complaint was not one year, but six months, so he would be too late; and Complainant then decided to take his information to FINRA.  Nor was the record sufficient to show that extraordinary circumstances justified equitable tolling.

Twyman v. TaxMasters, Inc., ARB No. 2011-031, ALJ No. 2010-SOX-00055 (ARB Apr. 5, 2021) (Dismissal Order)

BANKRUPTCY AUTOMATIC STAY PROVISION; SOX CASE DISMISSED WHERE RESPONDENT STOPPED FILING QUARTERLY STATUS REPORTS ON BANKRUPTCY PROCEEDING, AND WHERE NO PARTY RESPONDED TO ARB’S ORDER TO SHOW CAUSE WHY THE CASE SHOULD NOT BE DISMISSED 

In Twyman v. TaxMasters, Inc., ARB No. 2011-031, ALJ No. 2010-SOX-00055 (ARB Apr. 5, 2021),  while an appeal was pending before the ARB on Complainant’s SOX retaliation complaint, the  Respondents filed in March 2012 for bankruptcy protection, triggering the automatic stay provision of the Bankruptcy Code.  11 U.S.C. §§ 362(a)(1), (c)(2) (2020).  The ARB stayed the appeal.  In August 2018, the ARB ordered TaxMasters to provide quarterly status updates on the bankruptcy proceedings.  The most recent report received by the ARB was in August 2019.  In February 2021, the ARB issued an Order to Show Cause ordering the parties to explain why the case should not be dismissed on the grounds of abandonment, and cautioning that failure to timely respond may result in dismissal of the case without further order.  The parties did not respond.  Citing its authority to effectively manage its docket, the ARB dismissed the case.